Constitutional Myths

by Ray Raphael

  20.Johnathan George O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore: Johns Hopkins University Press, 2005), 138.

  21.Edwin Meese III, speech before the American Bar Association, July 9, 1985; “The Supreme Court of the United States: Bulwark of a Limited Constitution,” South Texas Law Review 27 (1986): 464; “Toward a Jurisprudence of Original Intent,” Harvard Journal of Law and Public Policy 11 (1988): 8. All three quotations are from Gregory E. Maggs, “Which Original Meaning of the Constitution Matters to Justice Thomas?” New York University Journal of Law & Liberty 4:494 (2009): 501, 552, 553.

  22.Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/supct/html/93–1260.ZC1.html (accessed June 3, 2012).

  23.Maggs, “Justice Thomas,” 507–14.

  24.Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/supct/html/93–986.ZC1.html; http://www.law.cornell.edu/supct/html/07–5439.ZC3.html; http://www.law.cornell.edu/supct/html/08–1448.ZD.html.

  25.For Justice Thomas’s selective application of originalism, see Mark Graber, “Clarence Thomas and the Perils of Amateur History,” in Rehnquist Justice: Understanding the Court Dynamic, ed., Earl M. Maltz (Lawrence: University of Kansas Press, 2003), 70–72.

  26.Madison, Notes, July 2. Morris’s response to this danger was to create an independent president, chosen by special electors who would meet at a designated moment in the separate states so they would not be subject to influence—the so-called Electoral College.

  27.Adams to John Taylor, April 15, 1814, Charles Francis Adams, ed., The Works of John Adams (Boston: Little, Brown, 1856), 6:456–57. By voting with the majority in Citizens United, Justice Thomas did endorse two peripheral arguments based on originalism, neither of which addressed the core issues of money, influence, and corporate power. “There is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations,” the majority argued. Logically, this claim carried little weight, because media corporations were specifically exempted from the restrictions in question, but alluding to the great newspaper debates of the times allowed Justice Thomas and four other justices to preach about the founders’ love of a free press, an uncontested point. Even more marginal was a bizarre appeal to Madison’s The Federalist No. 10: “By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests…. Factions should be checked by permitting them all to speak.” Was Madison really talking about global corporations, which somehow would neutralize one another’s influence in elections? And did others at the time understand him this way? In his concurring opinion, rather than offering an originalist variant on the majority opinion, Justice Thomas challenged one of the Court’s findings. While overturning most of the ban on corporate campaigning thirty days prior to an election, the Court upheld the requirement for posting or broadcasting disclosures, and Justice Thomas, citing his own endorsement of anonymous campaigning in McIntyre v. Ohio Elections Commission, objected to this restriction because it facilitated personal reprisals: “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the ‘primary object of First Amendment protection.’” From an originalist point of view, it was a strangely squeamish argument. In the founding era, a man subjected to defamation or death threats for his stated political views could fight back in the press, and should that not suffice, if he were a man of honor, he might challenge the aggressor to a duel rather than hide behind the sort of governmental protection Thomas now urged. On this contentious politics, shaped by considerations of honor and reputation, see Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, CT: Yale University Press, 2001).

  28.Even without this originalist perspective, Bush’s standing to bring the case before the Court was highly questionable. “The majority never even bothered to ask whether Governor Bush had constitutional standing to raise his ultimately triumphant equal protection claim against Florida on behalf of certain unidentified Florida voters. In equal protection cases involving racial minorities, the Court has been adamant that plaintiffs seeking a hearing may assert neither the rights of others nor abstract principles of fairness, but rather must establish their own standing to bring a claim by showing that they have suffered a concrete personal injury that is traceable to the government and redressable by the courts. Thus, in Allen v. Wright, the Court denied standing to African-American parents who wanted to compel the Internal Revenue Service to deny tax exemptions to private schools that discriminate on the basis of race. Justice O’Connor stated that citizens have no general right to make the government comply with the law and found that the African-American plaintiffs were not personally injured by the ‘abstract stigmatic injury’ associated with white flight allegedly facilitated by the IRS policy. But in Bush v. Gore, the majority did not question whether (much less explain how) Governor Bush was personally injured by the order of a manual recount. Assuming that there was a threatened injury to a certain subclass of pregnant chad voters, it would have been an injury visited on them, not on Governor Bush, Vice President Gore, or anyone else with standing to raise their claims for them. If Bush’s claim was that he would have been personally injured as a candidate if all ballots were not in fact counted, this might have been a plausible, if speculative, argument on the theory that the winning candidate acts as a proxy for the right of the majority to govern. The problem is that the relief Governor Bush was seeking, and the relief that was ordered, was not the counting of all the pregnant and dimpled chad ballots but the counting of none of them. Thus, he would have had to allege a hypothetical injury arising out of the counting of a class of ballots that the Court ultimately determined should have been counted. And even if we assume, bizarrely, that Governor Bush was going to be prospectively injured by the hypothetical possibility that anonymous third party citizens not in the case might have their pregnant chad ballots counted differently in one part of Florida than in another, how could stopping the vote-counting sufficiently redress these third party injuries? If your vote is in danger of not being counted, how does it help you for the Supreme Court to make sure that someone else’s vote is not counted along with it?” Jamin B. Raskin, “Symposium: Litigating the Presidency: The Election 2000 Decision and its Ramifications for the Supreme Court,” Maryland Law Review 61 (2002):652–61.

  Instead of offering an originalist argument, Justice Thomas sided with the majority, which argued that some Floridians had been denied the fundamental right to vote for president by the decision to recount ballots from some jurisdictions but not others. The obvious remedy, of course, would have been to require a manual recount from all jurisdictions, but the majority, which included Justices Thomas and Scalia, argued pragmatically that that would be impossible—an argument based on consequences, which originalists theoretically eschew.

  29.Clarence Thomas, Wriston Lecture (see note 1 above).

  30.Jeffrey Toobin, “Partners: Will Clarence and Virginia Thomas Succeed in Killing Obama’s Health Care Plan?” New Yorker, August 29, 2011, 42.

  31.Ibid., 43.

  32.Scalia, Matter of Interpretation, 38.

  33.Ibid.

  34.For a related use of the contrast between discovery and construction, see Lawrence H. Tribe, “Comment,” in Scalia, Matter of Interpretation, 71.

  35.Legal Information Institute, Cornell University Law School, http://www.law.cornell.edu/supct/html/95–1478.ZO.html#FN9. See also Peter J. Smith, “Sources of Federalism: An Empirical Analysis of the Court’s Quest for Original Meaning,” UCLA Law Review 52 (2004): 219. To his credit, Justice Scalia admits that the search f
or original meaning is “a task sometimes better suited to the historian than the lawyer,” but in practice, although he was trained in law and not history, he assumes the job nonetheless (Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 [1989]: 857). Other justices, like Justice Scalia, comb the sources selectively. One study of the Supreme Court since 1970 concluded, not surprisingly, that in cases involving federalism, justices promoting the authority of the federal government preferred to cite Federalists, while those favoring state authority tended to cite the Constitution’s opponents. There were exceptions, but these are easily explained. Justices who sided with states occasionally cited Federalists who were trying to appease their adversaries, and justices siding with the national government might cite opponents of the Constitution who, for political reasons, highlighted the strength of the national government under the proposed Constitution. When considering the state ratifying conventions, justices on opposite sides cited the same sources but drew contradictory conclusions. Pro-state justices took complaints by the Constitution’s adversaries seriously, saying delegates would never have voted for ratification if fears of centralization had not been satisfactorily appeased. Pro-national justices dismissed these same complaints because the majority adopted the Constitution without any changes (Smith, “Sources of Federalism,” 217–287; Maggs, “Justice Thomas,” 503).

  36.Scalia, “Originalism: The Lesser Evil,” 863–64.

  37.“Scalia seeks to deactivate the Court’s previous activism,” argues Kevin Ring in Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice (Washington, DC: Regnery, 2004), 16.

  38.Thomas, “Wriston Lecture”; Scalia, Matter of Interpretation, 38; Scalia, conversation with Peter Robinson, February 23, 2009, Hoover Institution, Stanford, CA, http://www.huffingtonpost.com/2012/07/04/antonin-scalia_n_1649211.html?utm_hp_ref=politics.

  39.Tribe, “Comment,” 73, 85, 70.

  40.Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Knopf, 2005), 124, 37, 15. Justice Breyer’s methodology, though comprehensive, simplifies the historical record. Even if we agree with Justice Breyer’s insistence on identifying the document’s “critical values,” his emphasis on democracy, which presented complex problems for the framers (see chapter 4), reveals the perils of inferring values from a document presented largely in the form of rules. The declarations of rights prepared by the states, and later the federal Bill of Rights, might be more suggestive of values, but the state declarations were preambles, affixed to constitutions that established concrete government structures and procedures.

  41.Scalia, Matter of Interpretation, 137, 142.

  42.Ibid., 45.

  43.Ronald Dworkin, “Comment,” in Scalia, Matter of Interpretation, 120–22. After drawing the distinction between rules and principles, Dworkin takes his antioriginalist argument one step further: “The Constitution insists that our judges do their best collectively to construct, reinspect, and revise, generation by generation, the skeleton of freedom and equality of concern that its great clauses, in their majestic abstraction, command.” It is difficult to locate precisely which clause within the Constitution makes this insistence, however. Distinguishing between rules and abstractions does not tell us how abstractions are to be treated (Ibid., 123).

  Justice Scalia admits that some provisions are more abstract than others, but he treats this distinction very differently. Because some provisions, including all the concrete rules, are clearly fixed in time, and because it is difficult to ascertain which provisions the framers might have intended as rules and which as abstract “aspirations” (a term Professor Tribe uses), Justice Scalia concludes that we are obliged to treat them all in the most literal way. That the authors of the Seventh Amendment would go so far as to stipulate a lower limit for jury trials in civil cases—precisely twenty dollars—proves to him that they had fixed ideas about the freedoms they protected in the Bill of Rights, ideas we are now obligated to respect (Scalia’s oral reply, as reported by Tribe, to his Tanner Lecture on Human Values, Princeton University, March 8–9, 1995, Matter of Interpretation, 88–89). Historically, Scalia’s argument seems forced. The twenty-dollar minimum was tacked on at the very last minute by the Senate with no dissent, after the House had passed the amendment without specifying a lower limit. There was no recorded discussion about whether the limit was too high, too low, or whether there should be a limit at all; the matter was too small to bother with. We cannot base the way we treat the Bill of Rights and the Constitution on an incidental move to procure a few final votes. (The documentary evidence for the evolution of the Seventh Amendment and the insertion of the twenty-dollar threshold is in Veit et al., Bill of Rights, 13, 40, 47, 49, 196.)

  Justice Scalia is correct in noting the difficulty in ascertaining the difference between rules and principles. The Bill of Rights contains several principles, but even there, some provisions state rules, not principles: “No soldier shall, in time of peace be quartered in any house, without the consent of the Owner” and “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Whereas these provisions might embody principles, they function within the document as laws that must be followed to the tee.

  In fact, the Constitution’s “grammar” needs to be refined. There are several different types of provisions, not only two:

  Goals, as stated in the preamble.

  Procedures, such as how to select officers, the lengths of their terms, and how a bill becomes law.

  Qualifications for representatives, senators, and the president.

  Grants of power to the legislative and executive branches and definitions of authority for the judicial branch. Some grants of power entail specified procedures that define and in some cases limit that power. The president is authorized to “make Treaties” with the “Advice and Consent of the Senate,” provided “two-thirds of the Senators present concur.”

  Prohibitions that define the limits of federal or state authority.

  Declarations of rights, which can be phrased as prohibitions of governmental authority.

  Charges that instruct the government or its officers to perform certain acts or achieve specified results. Most charges overlap with procedures and grants of power, as in Article II, Section 3: “He [the president] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” Others require a result without specifying a procedure, most notably Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government.” Article VI, Section 1, which requires the federal government to assume all prior debts of the United States, can also be considered a charge.

  Self-reflexive assertions of constitutional authority. Three provisions make metastatements about the Constitution itself. The opening and closing words of the preamble—“We the People of the United States … do ordain and establish this Constitution for the United States of America”—establish the Constitution as a contract. Article VI, Section 2, declares the Constitution to be “the supreme Law of the Land.” Article VII states how the Constitution is to be ratified, a process very different from the existing rules for amending the Articles of Confederation as set forth in that document’s Article 13.

  Some categories present more interpretative difficulties than others. Goals are the most problematic, not only because they are cast with broad strokes but also because they are not tied to specific procedures, grants of power, and so on. The Constitution itself gives no guidance as to how “general Welfare” contributes to any particular provision, yet because those words are featured so prominently and declared as a major goal, we can hardly ignore them. Historically, most disputes have centered on the limits of congressional authority (grants of power and prohibitions of federal authority), allocation of powers between th
e legislative and executive branches (grants of power and procedures), and rights. A grammar appropriate for each type can at least help identify the problem and in some cases lead toward a solution.

  Take grants of power. Article I, Section 8, Clauses 12, 13, and 14 empower Congress to raise an army and navy and to make rules for each. But what about an air force? A strict interpretation would have to conclude that because these clauses deal only with “land and naval Forces” (from Clause 14), the constitutionality of an air force, if indeed it is constitutional, could only be based on the general need for “common defence,” expressed in the preamble and Article 1, Section 8, Clause 1. Proponents of strict interpretation, though, are generally reluctant to depend on such broad principles, for fear that more questionable acts might also sneak in under “common defence.” Yet if we treat the grants of power in Clauses 12, 13, and 14 in terms of their clear purpose, we can view “army” and “navy” as placeholders that denote the means of providing national defense known at that time. An air force is therefore covered under these provisions.

  Similarly, in Article I, Section 8, Clause 11, we can read “declare war” as signifying a nation’s extended commitment to the expenditure of blood and treasure. (An earlier version of the clause gave Congress the sole authority to “make war,” but at the Federal Convention, on August 17, that was changed to allow the president, if Congress was not sitting, to repel an invasion. The president could “make war” for a short time, and when Congress reconvened, it could decide whether to “declare war” or not.) According to this reading, the president still would need to consult Congress when committing the nation’s armed forces to extended military conflicts, a core principle behind the Constitution and all republican thinking that buttressed it. With respect to grants of power, looking at words and phrases in terms of their function allows meanings to change in accordance with the Constitution, not in opposition to it.